Keeping the Tradition Alive
This month the Texas Civil Rights Project, an advocate for racial, social, and economic equality, celebrates its 15th anniversary. As TCRP notes on its Web site, over the years its lawyers and legal workers in Austin and in the Valley “have sued over every kind of misconduct in every part of Texas.” In addition to “traditional” civil rights and civil liberties work—free speech, voting rights, police brutality—the TCRP has made innovative use of the ADA (Americans with Disabilities Act) and Title IX, the federal law that prohibits sex discrimination against students and employees of educational institutions. Among the many clients that TCRP has represented are employees of the Brownsville diocese who were fired after signing a union contract; blind voters in El Paso who sought new mechanisms to ensure the secrecy of their ballot; and Mohammed Ali Ahmed and his family, residents of Austin and U.S. citizens, who were removed from an airplane at Austin’s Bergstrom International September 29, 2001, and prevented from traveling to a family funeral. In 2003 a group of activists later dubbed the “Crawford 5” was arrested for failing to obtain a parade permit when passing through Crawford en route to a demonstration outside the ranch of President George W. Bush. They were held overnight in jail. A Crawford jury gave them the largest fine allowable under law; a Waco judge later ruled that their arrest violated the First Amendment. Last May the group settled a federal lawsuit filed against the City of Crawford, McLennan County, and the Department of Public Safety. The successful resolution of the Crawford 5 cases paved the way for anti-war activist Cindy Sheehan’s protest outside the president’s ranch last August. Recently the Observer met with TCRP Director James Harrington. Excerpts of the interview follow:
Texas Observer: After Hurricane Katrina and the devastation along the Gulf Coast, we’re at a particularly strange moment in our national history. I wonder what you’ve been thinking about all that’s happened.
James Harrington: I was really stunned by Bush’s statement the day after his speech in New Orleans where he’s saying we’re not going to raise taxes to pay for this. What that really means to me is that no matter how eloquent his speech—I don’t know if eloquence is the right word, but he finally acknowledged we have issues of severe poverty and we have racism—the next day he says we’re not going to pay for it or we’re going to take it away from some other program that affects poor people. So much of what [this Administration] wants to undo are programs that were started by FDR or conceptually came about during the time of FDR, Social Security being a great example. The idea of creating work programs. Why wouldn’t you create a work program for New Orleans? It’s the same thing when you get to the courts, a more particularized part of this phenomenon, picking ideologically driven judges who are young and are going to be around for a long time to undo progress that was made through the court system. I feel sort of stunned about how fast and how far we’ve moved backwards. I almost see our role and the role of other civil rights organizations in the sense of just keeping the tradition alive, with the hope that some time in the future we’ll have a better judiciary, a better presidency, and a better Congress that will come back and try to pick up that tradition and breathe some life into it.
There’s no leadership or opposition or any vision anywhere on the spectrum right now. I keep wondering how does this stuff happen historically? What was it in the ’60s, for example, that lit the fire, and then all the leaders came about so that transition and transformation happens?
TO: Given the context of the current court system, how does the Texas Civil Rights Project decide strategy?
JH: The overarching goal for us is to work to make systemic change possible and to support community organizing, to the extent that there is community organizing that generates legal issues. We also have to respond to stuff that comes up. We end up doing cases in Crawford, free speech cases. Or Austin APD will kill somebody else and you have to deal with that. The example I always give is we had a case involving this fellow who was in the Williamson county jail who was HIV-positive. The county wouldn’t provide medication because it was too expensive. Then we had the case involving somebody who was beat up by APD on Sixth Street. And we could only take one of them. So we took the Williamson County case because that involves systemic change, getting them to change the way that they dealt with HIV, and we got somebody else to do the APD case.
TO: You’re talking about opening up an office in El Paso. Why El Paso?
JH: One reason is that people came to us and asked us. There were three concerns that were expressed. One was the issue of the police in El Paso, which is terrible. Border Patrol, of course. And the third was unequal treatment of Hispanics, particularly economic opportunities. Even though the town and the county is Hispanic, it’s still pretty much controlled by the Anglo establishment.
We were doing a police case out there—Montwood High School, where kids had gotten permission to demonstrate second period against block scheduling changes. One hundred twenty El Paso police cars show up. Every cop on duty in El Paso shows up, plus 20 or 30 that are off duty. There were about 600 to 700 kids. It was a planned demonstration and since they had permission, they called the TV station. So, the TV stations went out and videotaped the cops beating up the kids. It was during the course of that case that folks really started pushing, asking us to go there. There isn’t any kind of civil rights organization in West Texas. I don’t want it to just be in El Paso, I want it to reach out to the 15 counties or so that form that Big Bend area. There’s a lot to do out there. That’s my hope. I would use the same model that we use in the Rio Grande Valley, which is about five people. Part of that’s VAWA work [Violence Against Woman Act, a program established under federal law that assists undocumented women who have been abused and threatened with deportation by their U.S. citizen or permanent resident spouses] and basically just general civil rights work. We also do some consumer work in the colonias. That would be my model for El Paso.
TO: All civil rights lawyers and legal defense organizations say that their priorities are to advocate for systemic change. But how do you do that in the current legal climate—the climate that you’ve had for the past 20 to 25 years?
JH: I’m not necessarily talking about global systemic change. I remember a quote from Eleanor Roosevelt that all human rights are local, that things really start from the bottom and work up. One of the problems that we had during the ’60s is that because the Supreme Court happened to be progressive in that moment in history, we got used to the idea that stuff was going to be handed to us. And that is not a realistic view of the court.
In the past 15 years I think we have made a lot of progress in disabilities law. A couple of cases that we did had great impact, for example the idea that blind voters should have an independent ballot—an El Paso case. The beautiful thing about doing disability cases right now is that technology is so incredible. Another [area where we’ve made progress] is with parolees who have mental disabilities. In Texas you had parolees who were mentally ill or had mental retardation and then they would act out or not do things that they were supposed to do; they didn’t understand the idea of reporting to their parole officers or would act out and get their parole revoked. The rate of recidivism was two or three times higher than what it was for the general population. We filed a suit in Laredo and said, “Look, the ADA [Americans with Disabilities Act] requires you to modify state programs to accommodate people with mental illness.” They created special mental health parole officers, who basically work as social workers.
Even though we’re here in Austin, we’re constantly trying to gear our work to rural Texas. We’ve done a lot of Title IX cases, both for girls who were sexually abused by teachers or peers—and the school districts didn’t respond to it—and also Title IX cases dealing with equality of opportunities in sports for girls in rural high schools.
In the rural areas, you have a lot of problems with police brutality. The other thing that we really see a lot of is suicide cases in jails. And this is an example of where we’ve been very creative, using disability law instead of or alongside of regular civil rights law. The Supreme Court and the Fifth Circuit make it virtually impossible to win a suicide case, so what we did is we changed strategy and we went to the ADA, which doesn’t have “good faith” and “immunity” and all that other stuff that the courts have put on traditional civil rights law. These cases typically involve young men in their twenties who haven’t been arrested before and are drinking. Apparently they commit suicide while they’re still partially intoxicated or are just coming out of it. The Texas Commission on Jail Standards has finally developed a classification system in which you administer a test to the inmate; you don’t put someone who is subject to predatory violence in a cell with a predator. One of the things they’re also flushing out is medical conditions, mental health status.
The cases that we had were just terrible. The first one was in Tom Green County. They put the guy in a cell. There’s a solid door of steel, with a small window on it so there was no one watching him. He had a showerhead in the cell and he hanged himself. He had kids. While I was litigating that case, the second suicide in Tom Green County occurred—exactly the same thing. The third one was a young guy, about 18 years old. He didn’t have kids, but it was the same profile, as was the fourth case. Now I think [the county] finally got it together. We’ll see. But it’s a big problem. Then we had a case in Andrews County where the guy goes in jail, young guy. He’s depressed, lost his job; he’s coming back to live with his mother. They administer the test and say, “Oh yeah, he’s suicidal.” So what do they do? They put him in a regular cell with a regular blanket and he kills himself and the jailer says, “Well, he talked nice. I didn’t think he was depressed.”
TO: There’s a case I wanted to ask you about that pre-dates the Texas Civil Rights Project, but which you continued working on here. Opal Petty. [Petty was involuntarily committed to state institutions for 51 years. In 1989 a jury found the Texas Department of Mental Health and Mental Retardation guilty of negligence. Her case led to changes in state policy. On March 10, 2005, Petty died at the age of 86.]
JH: Opal was a family secret that nobody talked about. Her nephew and niece [Clint Denson and his wife, Linda Kauffman] found out about her by accident. Linda being the totally inquisitive person said, “Who’s Opal?” and finally pried it out of somebody that it was her husband’s aunt. So, she goes home to San Angelo and calls the state school—that’s where Opal was. They got her out, but she came out very institutionalized. Could you imagine living 51 years in an institution? The first time that Opal went into a grocery store, Linda had picked her up. It was the first time that she had ever been to a grocery store—and she went wild. She had never seen so much color in her life.
She lost her whole life to the institutions. I’m totally convinced that one of the reasons that she stayed in was because she was so docile and so productive. She was a hard worker and they had her basically doing slave labor. At the Austin state hospital, where she was institutionalized for 34 years, she worked in that laundry every day for 34 years.
This case lasted 13 weeks. We tried it for eight weeks and the jury was out for five weeks. They had two different theories to deal with, a very tenuous tort theory that’s since been invalidated by the Texas Supreme Court—we were the last to have won on that—and then there were the constitutional violations. With the constitutional violations you have to make a decision on intent. I think the jury was really hung up on whether they were going to find intent. And in the end, they didn’t. They only went on the tort claim. They awarded her $505,000. But then it was reduced under the statute to $250,000 [the maximum damages awarded in cases that result from actions of state employees].
TO: To compensate for a life.
JH: To compensate for a life. The first thing she did was she got on a train, and went to Disneyland. And then the second thing she did was buy a house. So she had 10 or 15 years …something. Less than what she should have had, but more than what she could have had.
You know, Opal played the piano. She played the piano right up until the time she went into the institution. I guess she played a little bit in the institution. But when she got out, she played all the time. And she loved to play “America the Beautiful.” That’s what we played for the jury.
It was the last [piece of evidence] that we showed the jury, the tape of Opal playing “America the Beautiful.”